IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. JAIRO
JONATHAN ELIAS ZACARIAS
No. 90-1342
In The Supreme Court Of The United States
October Term, 1990
On Writ Of Certiorari To The United States Court Of Appeals For The
Ninth Circuit
Brief For The Petitioner
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statutory provisions involved
Statement
Summary of argument
Argument:
A guerrilla organization's attempt to coerce a
person into performing military service is not
necessarily persecution "on account of * * * political
opinion" within the meaning of the Refugee
Act
A. Persecution "on account of * * * political opinion"
means the infliction of suffering because
of the victim's political beliefs
B. The guerrillas' attempt to coerce respondent
into performing military service manifests
their intent to field an army, not their intent
to persecute respondent on account of his political
beliefs
Conclusion
OPINIONS BELOW
The amended opinion of the court of appeals, Pet. App. 5a-25a, is
reported at 921 F.2d 844. The initial opinion of the court of appeals
is reported at 908 F.2d 1452. The opinion of the Board of Immigration
Appeals denying respondent's motion to reopen his deportation
proceeding, Pet. App. 27a-33a, is unreported. The opinion of the
Board of Immigration Appeals denying respondent's motion for
reconsideration of its dismissal of respondent's appeal, Pet. App.
34a-36a, is unreported. The opinion of the Board of Immigration
Appeals dismissing respondent's appeal Pet. App. 37a-38a, is
unreported. The oral opinion of the Immigration Judge, Pet. App.
39a-42a, is unreported.
JURISDICTION
The judgment of the court of appeals was entered on July 23, 1990.
A petition for rehearing was denied on January 10, 1991. Pet. App.
26a. The petition for a writ of certiorari was filed on February 25,
1991, and was granted on May 13, 1991. The jurisdiction of this Court
rests on 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 201(a) of the Refugee Act of 1980, Pub. L. No. 96-212, 94
Stat. 102-103, added Section 101(a)(42) to the Immigration and
Nationality Act of 1952 and is codified at 8 U.S.C. 1101(a)(42). It
provides:
Section 1101. Definitions
(a) As used in this chapter --
* * * * *
(42) The term "refugee" means (A) any person who is outside
any country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which
such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion, or (B) in such special
circumstances as the President after appropriate consultation
(as defined in section 1157(e) of this title) may specify, any
person who is within the country of such person's nationality
or, in the case of a person having no nationality, within the
country in which such person is habitually residing, and who is
persecuted or who has a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion. The term
"refugee" does not include any person who ordered, incited,
assisted, or otherwise participated in the persecution of any
person on account of race, religion, nationality, membership in
a particular social group, or political opinion.
Section 201(b) of the Refugee Act of 1980 Pub. L. No. 96-212, 94
Stat. 105, added Section 208(a) of the Immigration and Nationality Act
and is codified at 8 U.S.C. 1158(a). It provides:
Section 1158. Asylum procedure
(a) Establishment by Attorney General; coverage
The Attorney General shall establish a procedure for an alien
physically present in the United States or at a land border or
port of entry, irrespective of such alien's status, to apply for
asylum, and the alien may be granted asylum in the discretion of
the Attorney General if the Attorney General determines that
such alien is a refugee within the meaning of section
1101(a)(42)(A) of this title.
QUESTION PRESENTED
The Refugee Act of 1980 requires an alien seeking asylum to
demonstrate "a well-founded fear of persecution on account of race,
religion, nationality, membership in particular social group, or
political opinion." 8 U.S.C. 1101(a)(42), 1158(a). The question
presented is whether a guerrilla organization's attempt to coerce a
person into performing military service necessarily constitutes
persecution "on account of" that person's political opinion.
STATEMENT
The Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, limits
eligibility for asylum to any alien the Attorney General determines to
be "a refugee within the meaning of section 1101(a)(42)(A) of this
title." 8 U.S.C. 1158(a). A "refugee" is defined to be any person who
has left his native country and is unwilling to return there "because
of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group,
or political opinion." 8 U.S.C. 1101(a)(42)(A).
Respondent Jairo Jonathan Elias Zacarias left his native Guatemala
after two masked guerrillas armed with machine guns asked him to join
their army and, when he declined to join, told him to "think it (over)
well." Pet. App. 7a. In his deportation proceeding, respondent
applied for asylum and withholding of deportation on the ground that
the guerrillas' attempt to recruit him constituted persecution "on
account of" his political opinion. The Immigration Judge and the
Board of Immigration Appeals denied the requested relief because the
guerrillas did not threaten to harm respondent if he refused to join
them, and because any implicit threat was not "on account of" his
political opinion.
The Ninth Circuit reversed and found respondent eligible for
asylum. It held that the Guatemalan guerrillas' practice of forcible
recruitment made it reasonable for respondent to take the admonition
to "think it (over) well" as a threat. Pet. App. 16a-17a. Moreover,
the court said that the threat was "properly categorized as 'on
account of political opinion,' because the person resisiting forced
recruitment is expressing a political opinion hostile to the
persecutor and because the persecutors' motive in carrying out the
kidnapping is political." Id. at 12a. On the basis of its conclusion
that respondent was a "refugee" within the meaning of the 1980 Act,
the court of appeals remanded for the BIA to determine whether
respondent should be granted asylum. Id. at 25a.
1. Respondent was eighteen years old when he left his native
Guatemala in March 1987, a few months after two masked guerrillas came
to his home. The guerrillas were armed with machine guns and asked
respondent to join their army. Respondent refused to join, even
though the guerrillas offered to pay him to fight for them. The
guerrillas told respondent to "thing it (over) well" and said that
they would be back. Respondent remained at home and continued to work
at his regular job for the next two months before he decided to leave
Guatemala for the United States. Pet. App. 6a-7a, 32a, 40a-41a; C.R.
at 37.
2. Respondent was apprehended for entering the United States
without inspection. In his deportation hearing, respondent conceded
his deportability and requested asylum and withholding of deportation.
Pet. App. 40a. The Immigration Judge denied the requested relief.
"Considering all the evidence," the Immigration Judge determined that
"it does not appear that the respondent has established that he is a
refugee within the meaning of 101(a)(42) of The Act" because he has
"failed to demonstrate persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion." Pet. App. 41a-42a.
3. The Board of Immigration Appeals (BIA) summarily dismissed
respondent's appeal when his counsel failed to file a brief or
statement on his behalf. Pet. App. 38a. Respondent then moved the
BIA to reconsider its dismissal. The BIA denied the motion for
reconsideration; treating the motion as one to reopen respondent's
deportation proceeding, it denied the motion because "there has been
no evidentiary showing by the respondent that would warrant the relief
originally requested, or that the decision of the immigration judge
would be reversed." Id. at 36a.
Respondent then moved the BIA to reopen his deportation proceeding
and to consider new evidence in support of his appeal. The new
evidence was a letter from respondent's father saying that the
guerrillas had visted the family's home twice since respondent left
Guatemala: once in January 1988, and agin in April 1988. In the
January visit, the guerrillas asked for respondent's father and mother
and left when they found that the father was not at home. In the
April visit, the guerrillas asked for respondent, but were told that
he was in the United States. Both visits were for the purpose of
attempting to recruit respondent. Pet. App. 31a.
The BIA determined that the letter from respondent's father "not
only has failed to sustain his burden for reopening, * * * but also
has failed to produce evidence that would establish a well-founded
fear of persecution under the Act." Pet. App. 31a. "Even though the
respondent alleges that he was threatened by the guerrillas, the
evidence of record does not bear this out"; "there was no threat made
to the respondent that he would be harmed if he refused to join them."
Id. at 32a. Even if the guerrillas had threatened respondent, the BIA
held, it was for the purpose of satisfying their need for soldiers and
not "on account of" any political opinion held by respondent:
(I)n our decisions in Matter of Vigil, Interim Decision 3050
(BIA 1988), and Matter of Maldonado, Interim Decision 3041 (BIA
1988), we opined that when a guerilla organization attempted to
recruit someone, the initial encounter was important to examine
in order to determine the motivations of the guerrillas. In
this case, the guerillas wanted the respondent to join them, and
according to respondent's father, even offered to pay the
respondent for his services. In respondent's brief in support
of his latest motion, he acknowledges that the subsequent visits
by the guerrillas were also an attempt to recruit him in order
for him to assist the guerrillas in their attempt to violently
overthrow the Guatemalan Government. It can hardly be said that
the guerrillas, in any of their visits, sought to harm the
respondent for having opinions the found offensive.
Pet. App. 32a-33a. The BIA concluded that respondent "failed to show,
by his new evidence, a prima facie eligibility for asylum or that the
results of repondent's deportation hearing would be changed." Id. at
33a. Accordingly, it denied the motion to reopen. Ibid.
4. The Ninth Circuit reversed. Pet. App. 5a-25a. It found
respondent eligible for asylum, based on the evidence presented to the
immigration judge, on the gound that the guerrillas' attempt to
recruit him constituted persecution "on account of" his political
opinion. Id. at 6a. At the same time, the court held that the letter
from respondent's father did not require the BIA to reopen the
deportation proceeding with respect to his withholding of deportation
claim. Ibid. /1/
With respect to respondent's asylum claim, the court first noted
that the record before the Immigration Judge included an advisory
opinion from the State Department on the merits of respondent's
application for relief. Pet. App. 7a. Although the letter advised
that respondent was not a refugee, ibid., the court read it to support
respondent's claim that "the guerrillas engage in forced recruitment."
Id. at 8a. "Because nongovernmental groups lack legitimate authority
to conscript persons into their armies, their acts of conscription are
tantamount to kidnapping and constitute persecution." Id. at 12a.
"The persecution is properly categorized as 'on account of political
opinion,'" according to the court, "because the person resisting
forced recruitment is expressing a political opinion hostile to the
persecutor and because the persecutor's motive in carrying out the
kidnapping is political." Ibid.
Turning to the facts of the case before it, the court of appeals
found that respondent was eligible for asylum. Pet. App. 16a. "(I)n
light of the guerrillas' practice of using force to recruit people, it
certainly was reasonable for a person in (respondent's) situation to
take the statements (to 'think it (over) well') as threats." Id. at
17a. Furthermore, the court said, "the threat to (respondent) was for
political as opposed to personal reasons." It explained: "(T)he Board
did not suggest that the individual guerrillas who appeared at his
door had a personal quarrel with (respondent), and in any event, there
was no evidence to rebut the common sense inference that the
guerrillas were interested in recruting (respondent) to further the
group's political goals. There was thus a reasonable possibility,
based on the evidence presented (to the Immigration Judge), that the
guerrillas would return and take (respondent) by force, thereby
persecuting him on account of political opinion." Id. at 18a.
Although it concluded that the evidence showed that respondent was
eligible for asylum, the court added that respondent's evidence
"failed to prove the 'clear probability' of persecution necessary to
obtain withholding of deportation." Pet. App. 18a. It observed that
the letter from respondent's father "did not cure the key deficiency
in his withholding of deportation claim" -- namely, the lack of
specific evidence demonstrating that "forced recruitment was more than
a reasonable possibility." Id. at 25a. Accordingly, the court upheld
the BIA's denial of respondent's application for withholding of
deportation, but remanded the case so that the BIA could exercise its
discretion whether to grant respondent's asylum application. Ibid.
/2/
SUMMARY OF ARGUMENT
The Refugee Act of 1980 authorizes the Attorney General to grant
asylum only if he determines that an alien is unwilling to return to
his native country "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
1101(a)(42)(A).
A. The language of the Refugee Act pertinent to this case requires
the victim to hold a "political opinion" and to fear persecution
because of that opinion. By referring to persecution "on account of"
political opinion, Congress necessarily limited refugee status to
those who hold political opinions. The state of mind of the
persecutor is also an element, since "persecution" means the
infliction of suffering on a person because of the victim's beliefs.
Thus, the persecutor's state of mind is determinative of whether
persecution is "on account of" a political belief held by the victim.
The definitions of "refugee" in the international acts from which
the Refugee Act's definition was taken -- the 1946 Constitution of the
International Refugee Organization, the 1951 United Nations
Convention, and the 1967 United Nations Protocol -- likewise require
that persecution be "for reasons of," "based on," or "because of" the
victim's race, beliefs, or nationality. Other legislative history of
the Refugee Act confirms that it is necessary to focus both on the
victim's characteristics or convictions and on the persecutor's intent
to inflict harm on their account; indeed, Congress rejected a bill
that would have extended asylum eligibility beyond refugees thus
defined to include "dispaced persons." The BIA has interpreted the
Refugee Act to require proof of the persecutor's intent to harm the
applicant because of one of the five listed reasons, and has
determined that forced recruitment by either a guerrilla organization
or a government does not necessarily constitute persecution "on
account of * * * political opinion." That construction is entitle to
substantial deference.
B. A guerrilla group's conscription of soldiers is not necessarily
(or even usually) motivated by an intent to discriminate against a
person because of his political beliefs. It is true that forcible
conscription by a guerrilla group has a political goal. It is also
true that a person confronted with a credible threat of forcible
conscription may have a well-founded fear of physical injury or worse
if he does not go voluntarily. But those two facts, which, at best,
are all that respondent established in this case, do not satisfy the
statutory requirement that limits eligibility for asylum to persons
with a "well-founded fear of persecution on account of * * * political
opinion."
Contrary to the conclusion of the court of appeals, a threat made
to achieve a political objective is simply not eqivalent to
persecution on account of political opinion. A person might be
entirely sympathetic to the goals of the guerrillas, and share every
one of their political beliefs, but not want to serve in their army.
That person is faced with the same threat of forcible conscription as
one who is entirely hostile to the guerrillas' program. Conversely, a
person might share none of the guerrillas' views but be happy to sign
for a decent wage. It should be obvious that neither of those persons
has any fear of "persecution on account of * * * political opinion."
In his encounter with the guerrillas, respondent did not profess to
have any political opinions, let alone to disagree with those espoused
by the guerrillas. As concerns their behavior, "(i)t can hardly be
said that the guerrillas, in any of their visits, sought to harm the
respondent for having opinions they found offensive." Pet. App.
32a-33a. To the contrary, the BIA specifically stated that the
guerrillas sought to recruit respondent only so that he could assist
them in their efforts to overthrow the Guatemalan government -- "even
offer(ing) to pay the respondent for his services." Id. at 32a. Since
the guerrillas' threats were not made on account of his political
opinions, respondent is not eligible for asylum under the Refugee Act.
ARGUMENT
A GUERRILLA ORGANIZATION'S ATTEMPT TO COERCE A PERSON INTO
PERFORMING MILITARY SERVICE IS NOT NECESSARILY PERSECUTION "ON ACCOUNT
OF * * * POLITICAL OPINION" WITHIN THE MEANING OF THE REFUGEE ACT
An applicant for asylum must establish four elements to be eligible
for that relief: (1) that he is outside his country of nationality;
(2) that he "is unable or unwilling" to return to and avail himself of
the protection of that country; (3) that such inability or
unwillingness is "because of persecution or a well-founded fear of
persecution"; and (4) that such persecution is "on account of race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. 1101(a)(42)(A). As this case comes to
this Court, only the fourth element remains at issue.
A. Persecution "On Account Of * * * Political Opinion" Means The
Infliction Of Suffering Because Of The Victim's Political Beliefs
Asylum eligibility is limited to persons who reasonably fear
persecution on account of the five reasons listed in the statute,
including their political opinions. That proposition is apparent from
(1) the language of the Refugee Act, (2) the international acts which
supplied the definition of "refugee" in the Refugee Act, and (3) the
legislative history of the Refugee Act.
1. In the absence of congressional definition or common law
meaning, the phrase "persecution on account of * * * political
opinion" in the Refugee Act "must be given (its) ordinary meaning."
Chapman v. United States, No. 90-5744 (May 30, 1991), slip op. 7; INS
v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (giving definition of
"refugee" in Refugee Act its "ordinary and obvious meaning"). The
ordinary meaning of "persecution," at the time Congress passed the
Refugee Act in 1980, was the infliction of suffering because of the
victim's race, beliefs, or nationality, especially religious beliefs.
See 7 The Oxford English Dictionary 721 (1933) ("The action of
persecuting or pursuing with enmity and malignity; esp. the
infliction of death, torture, or penalties for adherence to a
religious belief or an opinion as such with a view to the repression
or extirpation of it."); The Random House Dictionary of the English
Language 1074 (1966) ("(A) program or campaign to exterminate, drive
way, or subjugate a people beause of their religious, ethical, or
moral beliefs or practices: the persecutions of Christians by the
Romans."); Webster's Second New International Dictionary of the
English Language 1826 (1957) ("The act or practice of persecuting or
an instance of such. Specif.: a(.) The infliction of sufferings or
death on those adhering to a creed or mode of worship regarded as
heretical or offensive; as, the persecution of the early
Christians."). The "on account of" clause in Section 1101(a)(42)(A),
which immediately follows the term "persecution," limits the reach of
the Refugee Act to the five bases for persecution listed in the
statute, one of which is the victim's "political opinion." See The
Random House Dictionary of the English Language, supra, at 10
(defining "on account of" to mean "by reason of; because of");
Webster's Second New International Dictionary, supra, at 16 (defining
"on account of" to mean "(f)or the sake of; by reason of; because
of").
The court of appeals offered two interpretations of "persecution on
account of * * * political opinion." Pet. App. 12a. First, it
construed that phrase to require an asylum applicant to "express() a
political opinion hostile to the persecutor." Second, it read that
phrase to mean that "the persecutors' motive * * * is political."
Ibid. As applied by the court of appeals neither interpretation
(alone or together) respects the limiting language chosen by Congress.
The first proposition simply ignores the "on account of" clause.
That clause requires persecution to be because of political opinion.
The asylum applicant may "express()" a political opinion, but if the
persecutor's disagreement with that opinion did not in fact cause the
persecution, then the persecution is not "on account of * * *
political opinion." The applicant's political opinion is a necessary,
but not a sufficient, condition of asylum eligibility.
The second proposition recognizes the causation required by the "on
account of" language, but profoundly misunderstands the nature of
"persecution." "Persecution" is the infliction (or threatened
infliction) of suffering on a person because of that person's
characteristics, not the persecutor's. It is irrelevant that the
persecutor's motives are "political" in nature, or that the persecutor
has "political goals," Pet. App. 18a; unless the persecutor intends
to hurt the asylum applicant because of the applicant's political
opinion, the applicant is not eligible for asylum.
2. The international agreements from which Congress drew the
definition of "refugee" in the 1980 Refugee Act support the reading of
"on account of * * * political opinion" as a limitation on asylum
eligibility to those who are harmed or threatened with harm because of
their political beliefs. The definition of "refugee" in the 1980
Refugee Act originated in the 1946 Constitution of the International
Refugee Organization (IRO). See INS v. Cardoza-Fonseca, 480 U.S. 421,
437 (1987). Responding to the persecution perperated by the fascist
powers before and during World War II, the IRO defined as "refugees"
those persons who were outside their native country and were "victims
of the nazi or fascist regimes or of regimes which took part on their
side in the second world war"; "Spanish Republicans and other victims
of the Falangist regime in Spain"; and "persons who were considered
refugees before the second world war, for reasons of race, religion,
nationality or political opinion." IRO Const. Annex 1, Pt. 1, Section
A1(a)-(c), 62 Stat. 3049. The IRO also defined as refugees persons
"of Jewish origin or foreigners or stateless persons" who were
returned to their native country by "enemy action" and became "victims
of nazi persecution." IRO Const., Annex 1, Pt. 1, Section A3, 62 Stat.
3049-3050. The IRO allowed refugees to decline to be repatriated to
their native country if they had a "valid objection" such as
"persecution, or fear, based on reasonable grounds of persecution
because of race, religion, nationality or political opinions." IRO
Const., Annex 1, Pt. 1, Section C1(a)(i), 62 Stat. 3050; see
International Refugee Organization, Manual for Eligibility Officers
No. 175, ch. IV. Annex 1, Pt. 1, Section C19, at 24 (undated,
circulated in 1950) ("Fear of persecution is to be regarded as a valid
objection whenever an applicant can make plausible that owing to his
religious or political convictions or to his race, he is afraid of
discrimination, or persecution, on returning home." (emphasis added)).
The IRO definition of "refugee" was incorporated into the United
Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. at
152, whose definition of "refugee" was in turn revised in the 1967
United Nations Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6225, T.I.A.S. No. 6577, to apply to persons who
became refugees after January 1, 1951. The United States acceded to
the Protocol in 1968. 19 U.S.T. 6257. In 1980, Congress, in enacting
the Refugee Act, conformed the definition of "refugee" in United
States immigration law to that in the 1967 Protocol. See, e.g., INS
v. Cardoza-Fonseca, 480 U.S. at 437; S. Conf. Rep. No. 590, 96th
Cong., 2d Sess. 19 (1980); S. Rep. No. 256, 96th Cong., 1st Sess. 4
(1979).
The 1946 Constitution of the IRO, the 1951 United Nations
Convention, and the 1967 United Nations Protocol all require that
persecution be "for reasons of," "based on," or "because of" the
victim's race, beliefs, or nationality. /3/ The drafters of these
instruments had in mind the many victims of fascist racial and
ideological persecution. "Refugees," as defined by the examples in
these instruments, were not unwilling conscripts or the victims of
war's dislocation; they were instead those who were made to suffer
for their race, their beliefs, or their nationality.
3. Testimony before Congress, and statments by its Members
individually and through committees, establish uequivocally that the
legislators understood the term "refugee" to include only those
persons persecuted because of their race, beliefs, or nationality.
/4/
What is more, Congress rejected a bill that would have extended
asylum eligibility to "displaced persons" because Congress wanted to
prevent expansion of "the numbers of refugees eligible to come to the
United States." H.R. Rep. No. 608, 96th Cong., 1st Sess. 10 (1979).
The court of appeals' reading of "on account of * * * political
opinion" would have precisely the effect Congress sought to avoid.
As this Court has "observed before," "the purposes of a statute
includes not only what it sets out to change, but also what it resolvs
to leave alone." West Virginia Univ. Hospitals, Inc. v. Casey, 111 S.
Ct. 1138, 1147 (1991) (citing Rodriguez v. United States, 480 U.S.
522, 525-526 (1987)). Both Houses of Congress recognized that the
customary definition of "refugee" included only those persons who had
left their native land. S. Rep. No. 256, 96th Cong., 1st Sess. 4
(1979). Both also wanted to assist victims of persecution who could
not leave their country, such as jailed dissidents and political
prisoners. Ibid. But the Senate bill proposed to do so by extending
asylum eligibility boradly to "any person who has been displaced by
military or civil disturbance or uprooted because of arbitrary
detention, and who is unable to return to his usual place of abode."
S. 643, 96th Cong., 1st Sess. Section 201(a) (1979); 125 Cong. Rec.
23,224-23,225 (1979); S. Rep. No. 256, supra, at 20. /5/ The House
of Representatives, in contrast, proposed to help "in such special
circumstances as the President * * * may specify, any person who is
within the country of such person's nationality * * * and who is
persecuted * * *." H.R. 2816 96th Cong., 1st Sess. Section 201(a)
(1979); H.R. Conf. Rep. No. 781, 96th Cong., 2d Sess. 2 (1980); S.
Conf. Rep. No. 590, 96th Cong., 2d Sess. 2 (1980). The conference
committee adopted the House version and rejected the Senate's
definition of "refugee," which would have included "displaced
persons." See H.R. Conf. Rep. No. 781, supra, at 19.
The rejection of the Senate bill is significant. See INS v.
Cardoza-Fonseca, 480 U.S. at 442-443 ("enactment of the House bill
rather than the Senate bill" demonstrates that Congress rejected the
approach of the Senate bill). It confirms that "on account of * *
political opinion" requires the persecutor's disagreement with the
victim's political beliefs to be the cause in fact of persecution, for
two reasons. First, by refusing to extend asylum eligibility to
"displaced persons," Congress rejected the idea that persons who flee
'military or civil disturbance," S. 643, 96th Cong., 1st Sess. Section
201(a) (1979); 125 Cong. Rec. 23,224-23,225 (1979), are eligibile for
asylum. Such persons may genuinely fear random acts of violence, the
arbitrary impositions of combatants, or worse; /6/ but the grounds of
their fear are not tied to the five listed in the Refugee Act.
Second, Congress's reason for denying asylum eligibility to
"displaced persons" applies with equal (or greater) force to an
interpretation of the "on account of * * * political opinion" language
that expands the customary notion of "refugee." Although the
Conference Committee report did not explain why it rejected the
Senate's "displaced persons" bill, other legislative materials
indicate that Congress was concerned about the number of persons who
would qualify as refugees under the expanded definition. The House
committee defended its definition on the ground that it would not
"expand the numbers of refugees eligible to come to the United States
and force substantially greater refugee admissions than the country
could absorb. * * * The Committee is of the opinion that the new
definition does not create a new and expanded means of entry, but
instead regularizes and formalizes the policies and the practices that
have been followed in recent years." H.R. Rep. No. 608, 96th Cong.,
1st Sess. 10 (1979). On the House floor, Congressman Fascell pointed
out that the House definition would not "create the potential for long
lines of refugee applicants at U.S. ports abroad." 125 Cong. Rec.
37,201 (1979); see Refugee Act of 1980, Pub. L. No. 96-212, Section
201(b), 94 Stat. 104-105 (requiring the President to inform Congress
of, inter alia, the number of such persons, the cost of their
resettlement, and "the anticipated social, economic, and demographic
impact of their admission to the United States"), codified as
Immigration and Nationality Act, Section 207(e), 8 U.S.C. 1157(e).
/7/
The same concern that caused Congress to reject the Senate's
"displaced persons" definiion inheres in the court of appeals' reading
of "persecution on account of * * * political opinion" in the statute
Congress passed. The court of appeals reasoned that "persecution is
properly categorized as 'on account of political opinion'" if the
asylum applicant "express(es) a political opinion" and "the
persecutors' motive * * * is political." Pet. App. 12a. But since the
court of appeals inferred the expression of a political opinion by
respondent because he would not join the guerrillas, the court of
appeals' only limit on asylum eligibility is the requirement that the
persecutors have a political "motive," or, as the court put it, that
the persecutors sought "to further the group's political goals." Id.
at 18a. Substituting the persecutor's politics for the applicant's
removes an essential limit on the definition of "refugee" under the
Act. Since guerrilla groups by definition have political goals
(overthrowing the incumbent government), any person they attempt to
coerce into performing military service would have a "well-founded
fear of persecution on account of * * * political opinion." That would
"entitle almost anyone in a war torn country to meet the statutory
requirements for a grant of asylum." Perlera-Escobar v. Executive
Office for Immigration, 894 F.2d 1292, 1299 n.5 (11th Cir. 1990) (per
curiam).
While that expansive result itself contradicts the legislative
intent, the court of appeals' rationale goes futher. If forced
recruitment by guerrillas is "on account of * * * political opinion,"
so, too, must military conscription by the government under the
auspices of a draft. Of course "non-governmental groups lack
legitimate authority to conscript persons into their armies." Pet.
App. 12a. But asylum eligibility under the Refugee Act does not turn
on whether persecution is legitimately authorized. Governments
throughout history have ordered persecution in punctilious conformity
with domestic law. No principled distinction can be drawn between
persons recruited by guerrillas and persons conscripted by
governments. Under the court of appeals' statutory interpretation,
victims of guerrilla recruitment and draft dodgers alike are eligible
for asylum.
In fact, the court of appeals' reading of the "on account of"
clause opens asylum to anyone with a well-founded fear of physical
harm at the hands of a political faction. Assume, for example, that
guerrillas need food, uniforms, and money to feed, clothe, and pay
their soldiers. Assume further that they extort what they need from
townspeople, asking them to choose between "your money or your life."
Since, according to the court of appeals, the guerrillas' political
motives satisfy the "on account of * * * political opinion"
requirement, the townspeople would be eligible for asylum. Thus, the
court of appeals' reasoning would extend asylum eligibility far beyond
the limit Congress imposed. /8/
4. Even if it were fair ground for debate whether harm inflicted or
threatened in order to achieve a political objective qualifies as
"persecution on account of * * * political opinion" -- and all the
indica of legislative intent forclose that interpretation -- the court
of appeals should have limited its consideration to whether the BIA's
interpretation of that phrase was based on a permissible construction
of the statute. Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-843 (1984). The Eleventh Circuit
explained in Perlera-Escobar that "(t)he meaning and scope of the
phrase 'on account of . . . political opinion' is not defined by the
Act, nor does it appear from the legislative history that Congress
unambiguously expressed an intent that the term should be construed in
a particular way." 894 F.2d at 1296. In such a situation, the court
of appeals should defer to the BIA's interpretation of the statutory
language as long as it is reasonable. See INS v. Cardoza-Fonseca, 480
U.S. at 448 (ambiguity in term like "well-founded fear" can only be
given "concrete meaning" in case-by-case adjudication; in that
process, "the courts must respect the interpretation of the agency to
which Congress has delegated the responsibility for administering the
statutory program"); cf. Pension Benefit Guaranty Corp. v. LTV Corp.,
110 S. Ct. 2668, 2676-2681 (1990); Fort Stewart Schools v. FLRA, 110
S. Ct. 2043, 2046 (1990); Sullivan v. Everhart, 110 S. Ct. 960, 964
(1990); Massachusetts v. Morash, 490 U.S. 107, 116-118 (1989);
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. at 844; EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600
n.17 (1981); Trafficante v. Metropolitan Life Insurance Co., 409 U.S.
205, 210 (1972).
The BIA's conclusion that forcible recruitment is not necessarily
"persecution on account of * * * political opinion" is reasonable, has
been applied consistently, and merits deference. In Matter of Acosta,
19 I. & N. Dec. 211, 223 (BIA 1985), modified on other grounds, Matter
of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), the BIA explained that
"'persecution' as used in section 101(a)(42)(A) (8 U.S.C.
1101(a)(42)(A)) clearly contemplates that harm or suffering must be
inflicted upon an individual in order to punish him for possessing a
belief or characteristic a persecutor seeks to overcome." According to
the BIA, "the evidence must demonstrate that
(1) the alien possesses a belief or characteristic a persecutor
seeks to overcome in others by means of punishment of some sort;
(2) the persecutor is already aware, or could become aware,
that the alien possesses this belief or characteristic; (3) the
persecutor has the capability of punishing the alien; and (4)
the persecutor has the inclination to punish the alien."
Matter of Acosta, 19 I. & N. Dec. at 226; Matter of Mogharrabi, 19 I.
& N. Dec. at 446. /9/
"(C)onduct undertaken to further the goals of one faction in a
political controversy does not necessarily constitute persecution 'on
account of political opinion' so as to qualify an alien as a 'refugee'
within the meaning of the Act." Matter of Acosta, 19 I. & N. Dec. at
234. "'(P)ersecution on account of political opinion' refers not to
the ultimate political end that may be served by persecution, but to
the belief held by an individual that causes him to be the object of
the persecution." Id. at 235. If "there are no fact showing that the
guerrillas were aware of or sought to punish" the alien "for his
political opinion," then "he does not come within this ground of
persecution." Ibid.
"(F)orced recruitment by either the guerrillas or the government
does not constitute fear of persecution 'on account of political
opinion.'" Perlera-Escobar, 894 F.2d at 1297 (speaking approvingly of
BIA's interpretation to that effect). "(H)arm which may result
incidentially from behavior directed at another goal, the overthrow of
a government or, alternatively, the defense of that government against
an opponent, is not persecution. * * * Thus, the drafting of youths
as soldiers, the unofficial recruting of sold ers by force, the
disciplining of members of a rebel group, or the prosecution of draft
dogers are necessary means of achieving a political goal, but they are
not forms of persecution directed at someone on account of one the
five categories enumerated in section 101(a)(42)(A) of the Act."
Matter of Rodriguez-Majano, 19 I. & N. Dec. 811, 815 (BIA 1988); see
Pet. App. 32a; Matter of Canas, 19 I. & N. Dec. 697, 707 n.7 (BIA
1988) ("(T)he evidence in this case indicates that both the Salvadoran
Army and the guerrillas have engaged in the indiscriminate, forcible
recruitment of young males in El Savador. Because of its
indiscriminate nature, this forcible recruitment would appear to be a
risk inherent in a civil war, rather than a risk of 'persecution.'");
Matter of Vigil, 19 I. & N. Dec. 572, 577 (BIA 1988) ("The evidence in
the record supports the respondent's statement that the guerrillas
forcefully recruit young Salvadoran males. The purpose of this
recruitment, however, is to further the guerrillas' objective of
overthrowing the Salvadoran Government; the intent of the recruitment
is not the persecution of young Salvadoran males on account of one of
the five grounds listed in the Act."); Matter of Maldonado-Cruz, 19
I. & N. Dec. 509, 513 (BIA 1988) ("The first encounter that the
respondent had with the guerrillas was their forced recruitment of
him. The respondent was kidnapped by the guerrillas. It does not
appear that there were any elements of persecution in this encounter.
The guerrillas did not approach him to harm him because they
considered him to have characteristics the guerrillas found offensive
or which they wished to overcome. The guerrillas wanted him to be a
member of their group, even if his help was not provided willingly, or
at least not volunteered."), rev'd, 883 F.2d 788 (9th Cir. 1989).
B. The Guerrillas' Attempt To Coerce Respondent Into Performing
Military Service Manifests Their Intent To Field An Army, Not Their
Intent To Persecute Respondent On Account Of His Political Beliefs
1. A guerrilla group's forcible conscription in order to field a
fighting force and further its political goal of overthrowing the
incumbent government, see Pet. App. 12a, 18a, is not, by itself,
"persecution on account of * * * political opinion." A guerrilla group
may engage in forcible conscription to fill its need for soldiers
without any intention to punish its levy for holding incorrect
political opinions. That, in fact, is the typical case. /10/
One example is the situation desribed by the Eleventh Circuit in
Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292.
Perlera-Escobar was a deserter from a guerrilla force who feared
punishment for his defection. Id. at 1294. The BIA concluded that
Perlera-Escobar was not eligible for asylum, because the punishment
Perlera-Escobar feared was not "persecution on account of political
opinion" since "there was no evidence that the guerrillas' motivations
to harm him are other than the need to discipline and deter desertion
by its members." Id. at 1295. The Eleventh Circuit found reasonable
"(t)he BIA's determiantion that the need to discipline and silence
deserters is not persecution on account of 'political opinion' within
the meaning of the Act." 894 F.2d at 1298. The court reasoned that
"(a) finding of persecution requires some degree of intent on the part
of the alleged persecutor to harm the applicant in order to overcome a
belief of the applicant." Ibid. /11/
Since a guerrilla group may well seek to recruit young men in order
field a fighting force, not to persecute those men for their political
opinion, the Ninth Circuit erred in suggesting that a threat to
conscript must be presumed to be persecution on account of political
opinion unless the INS presents evidence to the contrary. Such a
presumption (or inference /12/ ) has no basis in fact. Moreover,
Section 208(a) of the Act vests in the Attorney General the authority
to establish an asylum procedure, 8 U.S.C. 1158(a), and the procedure
he has established requires the alien to bear the burden of proving
his eligibility for relief, 8 C.F.R. 208.13. See Matter of Acosta, 19
I. & N. Dec. at 234 ("Case law and regulations have always made it
clear that it is the alien who bears the burden of proving that he
would be subject to, or fears, persecution."). The Attorney General's
refusal to recognize a presumption such as the one created by the
court of appeals is plainly appropriate.
2. The guerrillas' attempt to recruit respondent represented an
attempt to draft a soldier, not a threat to inflict harm on a
political foe. The certified administrative record does not reveal
that respondent has any political opinions at all, let alone a
politcal opinion offensive to the guerrillas. Moreover, his narrative
of the encounter, Br. in Opp. App. 4a-5a, does not reveal that he
expressed any political opinion to the guerrillas. /13/ For their
part, "the guerrillas wanted the respondent to join them, and
according to respondent's father, even offered to pay the respondent
for his services." Pet. App. 32a. The BIA noted that respondent
"acknowledges" that the guerrillas attempted to recruit him "in order
for him to assist the guerrillas in their attempt to violently
overthrow the Guatemalan Government," and emphasized that "(i)t can
hardly be said that the guerrillas, in any of their visits, sought to
harm the respondent for having opinions they found offensive." Id. at
32a-33a.
* * * * *
Of course, may acts by guerrilla groups -- political
assassinations, for example -- constitute "persecution on account of *
* * political opinion." And the potential target of such persecution
could introduce his own testimony or other indirect evidence to
satisfy the statutory requirements for asylum eligibility. But the
purpose of the Refugee Act was not to extend asylum eligibility to all
victims of coercion or terror, but only to those who were threatened
with persecution for certain reasons. Refusal to serve in someone's
army is not one of those reasns.
CONCLUSION
That part of the court of appeals' judgment holding respondent
eligible for asylum should be reversed.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
STUART M. GERSON
Assistant Attorney General
CHRISTOPHER J. WRIGHT
Acting Deputy Solicitor General
STEPHEN J. MARZEN
Assistant to the Solicitor General
LAURI STEVEN FILPPU
ALICE M. KING
Attorneys
JUNE 1991
/1/ An alien found eligible for withholding of deportation is
entitled, without more, to that relief. An alien found eligible for
asylum may still be denied that status in the discretion of the
Attorney General. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5
(1987); INS v. Stevic, 467 U.S. 407, 423 n.18 (1984).
/2/ Before denying a petition for rehearing, Pet. App. 26a, the
panel issued an order amending its opinion, id. at 2a-5a. The opinion
reprinted in the Appendix, id. at 5a-25a, incorporates those
amendments.
/3/ The definition of "refugee" in the French text of the 1951
Convention (which is "equally authentic" with the English text, 189
U.N.T.S. at 184), underscores that persecution of a person because of
his beliefs is an essential element of refugee status. The French
text defines "refugee" as any person
Qui * * * craignant avec raison d'etre persecutee du fait de sa
race, de sa religion, de sa nationalite, de son
appartenance a un certain groupe social ou de ses opinions
politiques, se trouvre hors du pays dont elle a la nationalite
et qui ne peut ou, du fait de cette crainte, ne veut se reclamer
de la protection de ce pays.
Id. at 153 (emphasis added). The use of the possessive pronouns
"son," "sa," and "ses," refers to the victim's race, religion,
nationality, membership in a social group, and political opinions.
Cassell's French Dictionary 687 (1962); see Eastern Airlines, Inc. v.
Floyd, 111 S. Ct. 1489, 1493-1494 (1991) (directing treaty
interpretation to "being with the text" and approving use of French
dictionaries in construing the authorative French text of the Warsaw
Convention).
/4/ See, e.g., H.R. Rep. No. 608, 96th Cong., 1st Sess. 9 (1979)
(defining "refugee" to include "political or religious dissidents" and
"prisoners of conscience"); The Refugee Act of 1979: Hearings on
H.R. 2816 Before the Subcomm. on International Operations of the House
Comm. on Foreign Affairs, 96th Cong., 1st Sess. 69 (1979) (statement
of Richard Clark, Coordinator of Refugee Affairs) (using "because of"
for "on account of"); Admission of Refugees into the United States:
Hearings on H.R. 3056 Before the Subcomm. on Immigration, Citizenship,
and International Law of the House Comm. on the Judiciary, 95th Cong.,
1st Sess. 14 (1977) (statement of Rep. Eilberg) (using "based on" for
"on account of"); id. at 36 (testimoy of James Carlin, Deputy
Coordinator for Human Rights and Humanitarian Affairs, U.S. Department
of State) (using "because of" for "on account of"); id. at 39
(testimony of James Carlin, Deputy Coordinator for Human Rights and
Humanitarian Affairs, U.S. Department of State) (introducing document
issued by the United Nations High Commissioner for Refugees describing
the 1967 Protocol as prohibiting "the refoulement of forcible return
of a refugee to any territory where his life or freedom would be
threatened on account of his race, religion, nationality, membership
of a particular social group or political opinion" (emphasis added)).
/5/ The Senate Report explained that the expanded definition was
intended to "accommodate political prisoners and detainees who need
resettlement opportunities outside their country" and to "insure
maximum flexibility in responding to the needs of the homeless who are
of special concern to the United States. This flexibility is needed,
for example, to handle such situations as the evacuation of Saigon."
S. Rep. No. 256, supra, at 4.
/6/ Considerable testimony before Congress concerned persons who
were not refugees under the customary definition because they had not
left their country. Those persons included political prisoners,
"displaced persons," and, as one commentator put it, citizens of a
country whose government is "so arbitrary that one need not be a
member of (a) particular race, religion, nationality, social group of
subscribe to any defined political opinion in order to incur its
wrath," such as Uganda under Idi Amin. Refugee Act of 1979: Hearings
on H.R. 2816 Before the Subcomm. on Immigration, Refugees, and
International Law of the House Comm. on the Judiciary, 96th Cong., 1st
Sess. 383 (1979).
/7/ The Senate apparently shared the concern of the House of
Representatives that the refugee definition not be given an expansive
reading. Senator Kennedy, the chief Senate sponsor of the bill,
described the Senate definition as intended to "accommodate political
prisoners and detainees." 125 Cong. Rec. 23,232 (1979). Senator
Kennedy defended the "displaced persons" definition on the Senate
floor: "Let me state now, in no uncertain terms, that this change in
the legal definition of a refugee will not mean that an unlimited
number of refugees can or will be admitted to the United States."
Ibid. It appears that his colleagues were not persuaded.
/8/ On the other side of the coin, the court of appeals' reasoning
would bar asylum to the foraging guerrillas because "(t)he term
'refugee' does not include any person who ordered, incited, assisted,
or otherwise participated in the persecution of any person on account
of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. 1101(a)(42). "Were we to hold
that practices such as attacking military bases, destroying property,
or forcible recruiting constitute persecution, members of armed
opposition groups throughout the world would be barred from seeking
haven in this country. As the concept of what constitutes persecution
expands, the group which is barred from seeking haven in this country
also expands, so that eventually all resistance fighters would be
excluded from relief. We do not believe Congress intended to restrict
asylum and withholding (of deportation) only to those who had taken no
part in armed conflict." Matter of Rodriguez-Majano, 19 I. & N. Dec.
811, 816 (BIA 1988); see Matter of Canas, 19 I. & N. Dec. 697 710
n.13 (BIA 1988); Matter of Fuentes, 19 I. & N. Dec. 658, 661-662 (BIA
1988). Compare Pet. App. 12a ("Because non-governmental groups lack
legtimate authority to conscript persons into their armies, their acts
of conscription are tantamount to kidnapping and constitute
persecution.").
/9/ The BIA's interpretation echoes that of the Office of the
United Nations High Commissioner for Refugees, as stated in the
Handbook on Procedures and Criteria for Determining Refugee Status
(Geneva Sept. 1979). Paragraph 80 states that the "political opinion"
ground of persecution "presupposes that the applicant holds opinions
not tolerated by the authorities, which are critical of their policies
or methods. It also presupposes that such opinions have come to the
notice of the authorities or are attributed by them to the applicant."
/10/ A guerrilla force that focused its recruiting efforts on
government supporters would be unusual and short-lived.
/11/ The Eleventh Circuit added:
In the absence of any evidence that the guerrillas are
interested in him for political reasons, the BIA inferred from
the record that Escobar is nothing more than a deserter. The
record makes it apparent that the guerrillas are a paramilitary
organization exercising control and discipline over its members.
It is also apparent that the guerrillas often rely on coercion
to recruit soldiers who would not otherwise join them. From
these facts the BIA inferred that in order to maintain order and
promote loyalty from its members, the guerrillas must discipline
deserters. Without such measures the guerrillas would perish
when, as is inevitably the case, the spirit of its fighters
wanes. In this respect the guerrillas are similar to any
military organization that punishes deserters in order to
maintain unity. Moreover, the guerrillas also have an interest
in preventing Escobar from divulging their secrets to the
government or government-backed groups. Even Escobar admits
that the guerrillas are interested in him because of what he
knows. Simply, the guerrillas care not what Escobar thinks or
believes; rather their interest in him stems from their need to
preserve unity and order in their ranks and to ensure the
secrecy of their operations.
894 F.2d at 1298 (emphases added).
/12/ In response to the government's petition for rehearing, which
questioned the panel's use of a presumption, Gov't Reheaing Pet. 7,
the panel deleted the word "presumption" and substituted the word
"inference." See Pet. App. 5a. Compare 908 F.2d at 1458, with Pet.
App. 18a.
/13/ In fact, respondent remained for more than two months at the
place where he supposedly feared forcible recruitment, and when
apprehended in the United States he claimed to have come here for
economic reasons. C.R. at 71, 147.